The Chicago v. People Ex Rel. the City of Elgin.

Citation1878 WL 10260,91 Ill. 251
PartiesTHE CHICAGO AND NORTHWESTERN RAILWAY COMPANYv.THE PEOPLE ex rel. The City of Elgin.
Decision Date30 September 1878
CourtSupreme Court of Illinois

OPINION TEXT STARTS HERE

APPEAL from the Court of Common Pleas of the City of Elgin.

Mr. A. M. HERRINGTON, for the appellant.

Mr. EUGENE CLIFFORD, and Mr. E. C. LOVELL, for the appellee.

Mr. CHIEF JUSTICE CRAIG delivered the opinion of the Court:

This was a petition for a writ of mandamus, brought in the Court of Common Pleas of the city of Elgin against the Chicago and Northwestern Railway Company, to compel the company to remove a certain stone arch out of Galena street in the city of Elgin which was built by the company as a part of its road bed when the road was constructed in 1851 or 1852. The street appears to be 66 feet wide, and the stone arch, upon which the road bed is constructed, where the road crosses the street, occupies about forty feet of the street, leaving but twenty feet for the use of the public in passing along the street under the arch.

It appears, from the evidence, that the street upon which the stone arch stands has been occupied and used by the railroad company as a part of its right of way through the city of Elgin from the time the road was constructed until the present time; that the railroad company has paid all taxes assessed upon the right of way, for State, county and municipal purposes, each year since the road was built.

On behalf of the defendant, it is contended that twenty years uninterrupted possession of the street by the railroad company, under the claim of ownership, and the right to use and occupy the same, constitutes a bar to a recovery in behalf of petitioners, under the Limitation law of 1827. Whether the railroad company has the right to invoke the aid of the Statute of Limitations as against the public or the municipal authorities of Elgin, is a question which does not properly arise upon this record, and will not be considered. In order to avail of the provisions of the Statute of Limitations, the possession, to constitute a bar, must be held adversely for a period of twenty years. Such was not, however, the case here.

From the time the street was taken possession of in 1851 until 1870, the occupation of the railroad company might be regarded as adverse, but on the 5th day of May, 1870, a contract was made between the railroad company and the city of Elgin, as follows:

This agreement, made this 5th day of May, 1870, between the Chicago and Northwestern Railway Company, a corporation of the States of Illinois, Wisconsin and Michigan, party of the first part, and the city of Elgin, Illinois, party of the second part,

Witnesseth, that whereas the said party of the first part is now in possession of Bridge and Galena streets on the west side of Fox river, in said city of Elgin, and occupies the same by its embankment and bridges, and whereas, the common council of the said city of Elgin, on the 27th day of February, A. D. 1869, passed an ordinance vacating a portion of North street on the east side of Fox river, and a portion of South street, on the west side of Fox river, in said city of Elgin, conditional that said ordinances should not be so construed as to affect the rights of the city in relation of said Galena and Bridge streets;

Now, therefore, in consideration of the sum of $1, and the further consideration of the vacating of said North and South streets, the said Chicago and Northwestern Railway Company, its successors and assigns, do hereby agree that whenever the bridges now built and standing in said Galena and Bridge streets shall be rebuilt, the same shall be so constructed as to leave the entire width of said streets free to the public under said railway.

In witness whereof the said Chicago and Northwestern Railway Company has caused this agreement to be signed by its vice-president and countersigned by its assistant secretary, and corporate seal thereof to be affixed the day and year first above written.

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